Summary
The Eleventh Circuit affirmed Tomario Hicks’s conviction and 180-month sentence for possessing a firearm as a felon. The court held that Hicks’s prior Georgia marijuana convictions qualified as serious drug offenses under the Armed Career Criminal Act and rejected his arguments concerning differences between Georgia and federal marijuana definitions. The court also held that binding precedent foreclosed Hicks’s facial and as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1).
Topics
Practice areas
Questions Presented
- Whether Hicks's prior Georgia marijuana convictions qualified as serious drug offenses under ACCA despite differences between Georgia's and federal marijuana definitions concerning the exclusion of mature stalks.
- Whether Hicks's facial and as-applied challenges to 18 U.S.C. § 922(g)(1) under the Second Amendment were foreclosed by binding Eleventh Circuit precedent.
- Whether the district court correctly calculated Hicks's initial Guidelines offense level based on prior controlled substance offenses.
Holdings
- Hicks failed to establish that Georgia's marijuana definition was categorically broader than the federal definition. The differing language concerning mature stalks did not establish a realistic probability that Georgia would prosecute conduct falling outside the federal definition, so the prior marijuana convictions qualified as serious drug offenses under ACCA.
- Hicks's facial and as-applied Second Amendment challenges to § 922(g)(1) failed because United States v. Rozier and United States v. Dubois II foreclosed them, and the prior-panel-precedent rule required the panel to follow those decisions.
- The court did not reach the merits of Hicks's challenge to the initial offense level of 24 because the ACCA-enhanced offense level of 34 mooted that challenge.
Key quotations
“Hicks’s argument about mature stalks necessarily fails because the divergent language does not establish a “realistic probability” that Georgia would actually prosecute conduct falling outside the federal definition.” (9)
“These statements “confirm[ed] that Rozier remains good law.”” (10)
“Although Hicks acknowledges the binding nature of Dubois II, he contends that it was wrongly decided.” (11)
Factual background
During a January 28, 2022, traffic stop, a Georgia State Patrol officer saw Hicks throw items from the passenger window. Hicks admitted throwing ecstasy pills from the vehicle and possessing a firearm, which officers found on the driver's-side floorboard along with a digital scale and plastic baggies. Testing showed that the discarded pills contained more than 32 grams of methamphetamine, and Hicks knew he was a felon. Hicks also admitted four prior Georgia convictions for possessing marijuana with intent to distribute, occurring in 2000, 2007, 2009, and 2012.
Procedural history
A federal grand jury indicted Hicks on multiple charges. He pleaded guilty to the felon-in-possession charge under a written plea agreement, and the government dismissed the remaining charges. The district court overruled his objections to the ACCA enhancement, accepted the presentence report, varied downward from the advisory Guidelines range, and imposed 180 months' imprisonment followed by five years of supervised release. Hicks appealed, and the Eleventh Circuit affirmed.